Madras High Court
P.Ravi vs K.Vijayakumar on 11 December, 2017
Author: M.Dhandapani
Bench: M.Dhandapani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.12.2017
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
Crl.O.P.(MD)No.669 of 2012
and
M.P.(MD)Nos.1 and 2 of 2012
1.P.Ravi
2.P.Mahalingam ... Petitioners/Accused Nos.1&2
Vs.
K.Vijayakumar ... Respondent/Complainant
PRAYER: Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure, to call for the records relating to C.C.No.162 of 2011,
on the file of the learned Judicial Magistrate, Papanasam, Thanjavur District
and to quash the same in so far as the petitioners concerned.
!For Petitioners : Mr.S.Subbaiah
Senior Counsel
for Mr.N.Subramanian
^For Respondent : Mr.K.Anbarasan
Government Advocate (Crl.Side)
:ORDER
This Criminal Original Petition has been filed to quash the proceedings in C.C.No.162 of 2011, on the file of the learned Judicial Magistrate, Papanasam, Thanjavur District, in so far as the petitioners concerned.
2.The brief facts of the case are as follows:
The case of the prosecution is that the petitioner is the proprietor of the Son Agro Chemical Industries and the second petitioner is working as chemist in the first respondent's unit. The first petitioner is licensed to manufacture insecticides under the provisions of the Insecticides Act, 1968, and the Insecticides Rules, 1971. The first petitioner sold insecticide to one Kasinathan at Kabisthalam, Thanjavur District, the third accused in the above said complaint, who is doing a retailed business in the name and style of Jeyashree Agro Agencies. On 14.07.2009, the respondent approached the third accused company and purchased Profenofos.50% EC. After purchase as required under law, purchased materials were divided into three sample bottles and thereafter, the said bottles were sealed, one bottle was left with the third accused, the second one was sent to the Public Analyst with Code No.PPM.12/2009-10 to their Laboratory at Madurai and the remaining third one was retained by the respondent himself, in his safe custody for specific purpose.
(2.1) The Insecticide Analyst gave a report, dated 28.07.2009, which contained the opinion of the Senior Agricultural Officer, Pesticides Testing Laboratory, Madurai, that the contents of the sample was misbranded quality as defined in Section 3, Clause (k) and Sub Clause (i) of the said Act, as the ingredient by mass is 44.1 against 50.60 as declared on container label, which does not satisfy the requirement mentioned in Clause 3.3.1.IS 15420:2002 and as such, it was declared that the sample was misbranded.
(2.2) After receipt of the Analyst report, the said report was sent to the petitioners by the respondent, on 03.08.2009, calling for explanation from the petitioners, which should reach the respondents within ten days from the date of receipt of the copy of the said communication. After receipt of the said letter, dated 03.08.2009, the petitioners requested the respondent to sent the sample retained by the respondent for re-examination for the purpose of getting second Analyst Report from the competent authority. However, without considering the request, the respondent again sent a letter, dated 18.11.2009 and 04.03.2010 directed the first petitioner and the third accused to provide the additional information regarding the manufacturing details. However, on 09.05.2010, again the petitioner made a request to the respondent to sent a sample for re- examination of the report of the insecticide analyst. However, without complying the said request, the respondent filed a complaint in the year 2011, against which the present Criminal Original Petition is filed.
3.The learned counsel for the petitioner submitted that the petitioner manufacturing the Profenofos for the purpose of insecticide in the month of June, 2009. The shelf life of the pesticide had expired on May, 2011. But, the petitioner had taken sample on 14.07.2009 and sent for analysis on the same day and the Analyst had given a report on 28.07.2009. Though the petitioner repeatedly made request to the respondent to send the sample for second analysis on 28.09.2009, without considering the request made by the petitioner, the respondent filed the complaint is not sustainable in law. Though the Joint Director have granted permission to file a complaint on 11.10.2010, the respondent filed a complaint in the year 2011, after expiry of the shelf life of the pesticide is not sustainable in law. To support his contention of delay in filing, the learned counsel for the petitioner cited a decision of the Hon'ble Supreme Court in Northern Mineral Limited vs. Union of India and another, reported in 2010 (7) SCC 726, wherein in paragraphs 26 and 27, it has been held as follows:
?26. We are distressed to note the casual manner in which the whole exercise has been done. The Insecticide Inspector had collected the sample on 10.09.1993 and sent it to Insecticide Analyst for analysis and report. The Insecticide Analyst submitted its report, dated 13.10.1993. Notice of the report was sent to the appellant on 01.11.1993, in reply whereof by letter dated 17.11.1993 it intimated its intention to adduce evidence in controversion of the report. The shelf life of the pesticide had not expired by that time but expired in February 1994. However, permission to file complaint was given on 23.02.1994 and the complaint was actually filed on 16.03.1994. Had the authority competent to grant consent, given consent and complaint lodged immediately after the receipt of intimation by the accused, the sample could have very well been sent for analysis and report, before the expiry of shelf life.
27. It is interesting to note that Sections 24(3) and (4) of the Act oblige the Insecticide Analyst and the Central Insecticides Laboratory to make the test and analysis and report within thirty days. When 30 days is good enough for report, there does not seem any justification not to lodge complaint within 30 days from the receipt of the intimation from the accused and getting order for sending the sample for test and analysis to the Central Insecticides Laboratory. All who are entrusted with the implementation of the provisions of the Act, would be well advised to act with promptitude and adhere to the time schedule, so that innocent persons are not prosecuted and real culprits not left out.?
4. He relied on yet another judgment in M/s.Embiotic Laboratories (P) rep. by its Director, Thiru Kantilal vs. Jain and Others, reported in 2013(2) LW 475 at paragraph No.9, it has been held as follows:
?9. In this regard, a reference could be placed in the judgment relied on by the petitioners reported in (2008) 7 SCC 196 (Medicamen Biotech Limited and another vs. Rubina Bose, Drug Inspector), wherein the Hon'ble Apex Court has held that when the appellants have been deprived of a valuable right under sections 25(3) and 25(4) of the Act, it must necessitate the quashing of the proceedings against them. The relevant paragraph is extracted hereunder: "19. In the affidavit filed to the petition by Dr.D.Rao, Deputy Drugs Controller, and in arguments before us, it has been repeatedly stressed that the delay in sending of the sample to the Central Drugs Laboratory had occurred as the appellant had avoided service of summons on it till 9th May 2005. This is begging the question. We find that there is no explanation as to why the complaint itself had been filed about a month before the expiry of the shelf-life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after the complaint had been filed.
Likewise, we observe that the requests for retesting of the drug had been made by the appellant in August/September 2001 as would be clear from the facts already given above and there is absolutely no reason as to why the complaint could not have been filed earlier and the fourth sample sent for retesting well within time. We are, therefore, of the opinion that the facts of the case suggest that the appellants have been deprived of a valuable right under Section 25(3) and 25(4) of the Act which must necessitate the quashing of the proceedings against them?.
A reading of the said judgment would clearly show that filing of the complaint before expiry of shelf-life of the drug is very important and if the complaint is filed after expiry of the shelf-life of the drug, the petitioners would be losing a valuable right to make a request to the Court to send the sample for re-test. It could be understood further from the said judgment that even assuming that there is a delay in filing the complaint, there should be an explanation on the part of the respondent with regard to the said delay.?
5. The learned Government Advocate (Criminal side) would submit that after raising the entire averments and after obtaining the permission, the respondent filed the complaint. However, he fairly conceded that there was a delay of five months for filing the compliant, i.e., after the shelf life of the product.
6. I have heard the learned counsel for the petitioner and the learned Government Advocate (Criminal side) appearing for the respondent.
7. Considering the submission made by the learned counsel on both side, it is clear that the sample was taken by the respondent on 14.07.2009 and the Insecticide Analyst Report was obtained by the respondent on 28.07.2009. However, the petitioner made a request to the authority to send the sample for second analysis report, which the petitioners are entitled to. However, the authority acted in a casual manner knowing very well that the shelf life of the pesticides expired in the month of May, 2011. However, they chosen to file the complaint after expiry of five months of the shelf period. It cannot be gainsaid, therefore, that the petitioners have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under Sub-section (4) of Section 24 of the Act. Under Sub-section (3) of Section 24, report submitted by the Insecticide analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused, only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the Court before which the proceedings are pending that they intend to adduce evidence to controvert the report. However, in the present case, the authorities without giving any opportunity to the petitioner for giving proper reply and filed a complaint in the month of October, 2011, ignoring the legal principles. Hence, as per the decision cited supra, I have no other option except to quash the complaint, since the complaint has been filed after delay of five months from the expiry of shelf life period, it is clear abuse of process of Court. Hence, the complaint is liable to be quashed.
8. Accordingly, the Criminal Original Petition is allowed and the proceedings in C.C.No.162 of 2011, pending on the file of the learned Judicial Magistrate, Papanasam, Thanjavur District is quashed. Consequently, connected miscellaneous petition is closed.
To The Judicial Magistrate, Papanasam, Thanjavur District.
.